For the past year, several football players in the National Football League, most notably Colin Kaepernick, have engaged in protests against racial injustice by refusing to stand during the playing of the national anthem prior to professional football games. These individuals have either “taken a knee” or have remained seated during the anthem. Until recently, only a small number of athletes were protesting in this fashion. However, recent social media postings by the President sparked an increased conversation pertaining to these demonstrations, culminating in numerous forms of protest during last weekend’s professional football games.
Many high school athletes look to professional athletes as role models, and it would not be surprising if some high school athletes emulated the protests performed by professional athletes. Although the appropriateness of the above referenced protests has been intensely debated, the legal ramifications of restricting a student’s freedom of expression are clear.
One of the most important cases in this area is the case of West Virginia v. Barnette. Decided by the United States Supreme Court in 1943, the Supreme Court held that a public school could not compel its students to salute the flag. In so holding, the Court stated that “to sustain the compulsory flag salute, we are required to say that a Bill of Rights which guards the individual’s right to speak his own mind left it open to public authorities to compel him to utter what is not in his mind.” The Court held that just as the First Amendment protected the individual’s right to speak, it also protected the individual’s right to remain silent.
Over two decades later, the Supreme Court expanded upon school-aged students’ right of expression in the case of Tinker v. Des Moines. In this 1969 decision, the Court held that students have a constitutional right to engage in non-disruptive protests (in Tinker, the students were disciplined for wearing black armbands in protest of the Vietnam War) during the school day. Unless the students’ protest caused, or was reasonably expected to cause, the disruption of school events, school officials were prohibited from disciplining the students.
In a more recent decision handed down in 2004, Circle School v. Pappert, the Third Circuit Court of Appeals concluded that Section 7-771(c) of the Pennsylvania Public School Code, which required all schools in the Commonwealth to provide for the recitation of the Pledge of Allegiance or the national anthem at the beginning of each school day; allowed students to decline to participate in the recitation of the Pledge or the saluting of the flag on the basis of religious conviction or “personal belief”; but required the school to provide written notification of their child’s non-participation to the parents of non-participating students, was unconstitutional. The Court held that such a law infringed on students’ First Amendment associational rights.
Reasonable minds differ on the appropriateness of engaging in political protest during the playing of the national anthem. Although such protests may offend individuals; athletes, even high school athletes, are legally permitted to engage in such protests as a form of expression protected under the First Amendment, so long as the protest is peaceful, respectful, and does not disrupt the school event. As such, we recommend that School Districts refrain from punishing, or threatening to punish, students for engaging in non-disruptive protests contemporaneous with the playing of the national anthem. Any such discipline may invite civil rights litigation against your School District. As always, our Education Law team is available to discuss this matter with you further at 412.242.4400.